Lamberth says Norton playing magic with trust reform

FROM THE ARCHIVE

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TUESDAY, JULY 1, 2003

The federal judge overseeing the Indian trust suggested on Tuesday that the Bush administration was playing word games in order to avoid fulfilling its responsibilities to account holders.

U.S. District Judge Royce Lamberth called a trial to address an historical accounting and reform of the Individual Indian Money (IIM) trust. In a court order accompanying his decision to hold Secretary of Interior Gale Norton and former assistant secretary Neal McCaleb in contempt, he asked the government to submit two plans that would bring them into compliance with their trust duties.

But during testimony in Washington, D.C., yesterday, he said the Department of Interior's response appeared to fall short of his requirements.

"It doesn't comply with my order, does it?" Lamberth asked special trustee Ross Swimmer of the historical accounting plan. "Where did I say in my order that [the historical accounting] only applies to fund management?"

"You didn't, your honor," admitted Swimmer.

The government's historical accounting plan, submitted January 6, imposes a number of limits on the project. Chief among them is a decision not to account for the 11 million acres of land held in trust for individual Indians. Department officials have taken great pains to separate an accounting of "funds" from an accounting of "trust assets."

When Swimmer was asked by Native American Rights Fund attorney Keith Harper where that distinction came from, Lamberth interjected and said "clever lawyers" and "clever accountants."

"I'll accept that, your honor," Swimmer said.

The second Interior plan describes how the department will fix the IIM system and the standards by which it will be held accountable. The document specifically avoided the use of common law standards, a move that represents the stance the Department of Justice has taken in several court cases, including those recently before the Supreme Court.

But on March 28, well past the January deadline imposed by Lamberth, Swimmer's Office of Special Trustee released a "comprehensive" trust management plan that brings in common law standards. Well, sort of, said Lamberth.

"It would take a magician to understand that," he observed.

Lamberth's words hint of his formal response to the Bush administration's initiatives. When he called the trial last September, he said he was considering imposing a "structural injunction" on the Interior in order to make sure it was carrying out its trust duties.

The trial, which started May 1, is expected to wrap up next week. It is not known when Lamberth will make a decision about how to go forward.

The plaintiffs have asked Lamberth to reject the department's plans an adopt their approach. They say they are ready to wrap up the case by the end of the year in a way that will correct the account balances in the trust.

Relevant Links:
Office of Special Trustee - http://www.ost.doi.gov
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust